With sentence no. 8390/2019 the Court of Cassation has returned to rule on the subject, much debated in recent years, concerning the disciplinary relevance of reprehensible conduct - because it is contrary to criminal regulations or even to the so-called minimum ethical common or common norms of civil life - assumed by the employee in his private life (and, therefore, extraneous to their performance at work).
The Court of Cassation considered, in the case submitted to it, that the appeal judge, by reforming the first instance sentence, had made a correct assessment of the behaviour of the worker outside the working environment, the worker having threatened a third party (criminally relevant conduct and for which the same worker had suffered, however, a conviction for the crime of serious threats) in the so-called private sphere.
This fact, which was the basis for the dismissal for just cause ordered by the employer, was considered by the second instance judge - with a decision deemed correct by the S.C. - not so serious as not to allow the continuation of the employment relationship, even provisionally, thus disregarding the alleged recurrence, due to extraneousness to the relationship, of the events assumed as a serious breach of the fiduciary relationship that must exist between employer and employee.
In particular, the S.C. assessed that the conduct, subject to a disciplinary dispute had no impact on the ability of the dismissed worker to properly perform his work for the future, especially given the fact that “the threat pronounced outside the workplace and against outsider subjects has a different value, in ascertaining the breach of the fiduciary bond, compared to that offered to the employer or in the workplace, because it does not intrinsically affect the obligations of collaboration, loyalty and subordination to which the employee is obliged towards one of his superiors. In fact, when - as in the case in question - it does not appear to have a reflection on the functionality of the relationship and has not compromised the expectations of a future punctual fulfilment of the work obligation, it does not prove to be incompatible with the persistence of that trust bond to which the employment relationship itself is founded or manifested as a conduct seriously damaging to the norms of ethics and civil life which constitute a just cause of dismissal. Correctly, therefore, the behaviour of the V. was considered unsuitable to damage the moral and material interests of the employer or to compromise the employment relationship according to the standards, conforming to the values of the order, existing in the civil reality".
The ruling under consideration fits into that established jurisprudential orientation, according to which, when working or non-working behaviour is contrary to the so-called ethical minimum or the norms of the common civil life, the sanction can be imposed by the employer, even in an expulsive form, regardless of the failure to foresee that conduct, unlawful or only reprehensible, in the disciplinary code, having to consider the evaluation of the judge as having been delegated the proportionality of the sanction to the transgression, for the purposes of compliance with fairness pursuant to art. 2106 c.c..
This orientation is countered by other behaviours which are more directed at preserving employment in the presence of reprehensible non-working behaviours, which remove any behaviour by the employee that had no effect, even indirectly, on the contractual sphere from conduct that could be dismissed for just cause. (EB)
